Madras High Court
Ponnusamy Nadar vs Rajammal ... Plaintiff / Appellant / on 23 December, 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.12.2016
RESERVED ON : 19.12.2016
PRONOUNCED ON : 23.12.2016
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.1217 of 1999
Ponnusamy Nadar ... Defendant / Respondent / Appellant
-vs-
Rajammal ... Plaintiff / Appellant /
Respondent
PRAYER: Appeal is filed under Section 100 of the Civil Procedure Code against
the Judgment and Decree, dated 19.09.1996, made in A.S.No.14 of 1995, on the
file of the Subordinate Judge, Tenkasi, against the Judgment and Decree,
dated 24.01.1995 in O.S.No.133 of 1988, on the file of the District Munsif
Court, Tenkasi.
!For Appellant : Mr.T.R.Rajaraman
^For Respondent : Mr.T.S.R.Venkataramana
:JUDGMENT
The defeated defendant is the appellant herein.
2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
3. The plaintiff filed the suit in O.S.No.133 of 1988, before the learned District Munsif, Tenkasi, for the relief of declaration over Item No.I of the suit property i.e., suit Well and for permanent injunction restraining the defendant from drawing water from the suit Well for irrigation of his land in Item No.II of the suit property.
4. The plaint proceeds on the basis that the plaintiff has purchased the right in the suit Well under Ex.A1 Sale Deed, dated 03.03.1987 and she is irrigating her land by drawing water from the suit Well. As the defendant interfered and tried to draw water from the suit Well for his land, she filed the suit.
5. The defendant filed a written statement denying the averments of the plaintiff inter-alia contended that from the common vendor, both of them had purchased the land and therefore, prayed for dismissal of the suit.
6. After contest, the suit O.S.No.133 of 1988, was dismissed by the Trial Court, vide Judgment and Decree, dated 24.01.1995.
7. Aggrieved against the Judgment and Decree, dated 24.01.1995, made in O.S.No.133 of 1988, the plaintiff preferred an appeal, in A.S.No.14 of 1995, before the learned Subordinate Judge, Tenkasi, and before the Lower Appellate Court, she had filed an interlocutory application to receive additional evidence at the appellate stage.
8. By Judgment and Decree, dated 19.09.1996, the appeal preferred by the plaintiff was allowed by the Lower Appellate Court.
9. Aggrieved against the Judgment and Decree, dated 19.09.1996, made in A.S.No.14 of 1995, the defendant has filed the present second appeal.
10. The brief averments of the plaint that are necessary to decide this appeal are as follows::
The plaintiff is in the possession and enjoyment of Item No.I of the suit property having purchased the same from one Annavi Kasilinga Nadar, by a Sale Deed, dated 04.02.1987, and the defendant has no right or title whatsoever in respect of the Item No.1 of the suit property. After the purchase of Item No.I of suit property, the defendant had purchased Item No.II of the suit property from the said Annavi Kasilinga Nadar in a fraudulent manner. Item No.II of the suit property is a heap and in the higher level other than the land level and for the same, there is no irrigation of water right from the suit Well. Neither the said Annavi Kasilinga Nadar nor his predecessor-in- title had never any irrigating right for the Item No.II of the suit property. Whileso, the common vendor Annavi Kasilinga Nadar has no right to convey right of irrigation from the suit Well to the Item No.II of the suit property. If any Sale Deed is executed, the same would not bind upon the plaintiff. The defendant had issued a legal notice, on 03.02.1988, to the plaintiff's husband and thereupon tried to interfere with the drawing of water to the suit property and the defendant had also scandalously levelled the ground to suit to the water course. Hence, the suit. At the time of filing the suit, the survey number of the land was wrongly mentioned. However, in the report filed by the Advocate Commissioner, the plaintiff's possession and enjoyment of the suit property has been clearly demarcated and identified. The survey number mentioned in the Sale Deed executed in favour of the defendant is also not proper and accordingly, only after the Advocate Commissioner's report, the defendant came to know about the correct survey number.
11. The brief averments of the written statement that are necessary to decide this appeal are as follows:
All the averments made in the plaint are denied and the suit schedule is not in accordance with the report of the Advocate Commissioner. Both the survey number and the boundaries of the suit property are not correct. The plaintiff having purchased some other properties in his name inviting the defendant to give trouble by filing the suit. It is wrong to state that the defendant has no right to draw water from the suit Well and there is no Well as described in the Item No.I of the suit property. The plaintiff cannot dispute the right of his predecessor-in-title over the Item No.II of the suit property and the same has been clearly described in the description of the Item No.I of the suit property and the survey number does not lead to cause of action for filing the suit. The suit is bad for non-joinder of other co- owners of the Well and hence prayed for dismissal of the suit.
12. The learned counsel appearing for the appellant / defendant submitted that the learned Subordinate Judge has failed to see that Ex.A1 Sale Deed executed in favour of the plaintiff, which clearly shows that she has purchased only 1/7th share in the suit Well. Further, the learned Subordinate Judge has failed to see that the plaintiff could not seek declaration without getting rectification deed from her vendor.
13. The learned counsel appearing for the appellant / defendant further submitted that the learned Subordinate Judge ought to have dismissed the appeal suit, when the schedule mentioned property in Ex.A1 and the suit schedule property are completely differed. Further, the learned Subordinate Judge failed to see that Ex.A1 gives only 1/7th share in the Well to the plaintiff and Ex.B1 gives 1/6th share in the Well to the defendant and the common vendor has also deposed evidence as D.W.2 to the effect that both the plaintiff and the defendant have shares in the Well.
14. The learned counsel appearing for the appellant / defendant further submitted that the learned Subordinate Judge has erred in decreeing the suit for declaration and permanent injunction, when the respective sale deeds give rights to both the parties to draw water from the suit Well. Furthermore, the learned Subordinate Judge has erred in declaring the title of the plaintiff based on the Advocate-Commissioner's report.
15. At the time of admission of this appeal, the following substantial questions of law have been framed:
i. Whether the lower Appellate Court was right in declaring the title of the plaintiff when the subject matter of Ex.A1 is admittedly different from plaint Schedule?
ii. Whether the plaintiff can restrain the defendant from taking water from the common Well when their respective Sale Deeds (Exs.A1 and B1) convey to take water?
16. The admitted factual matrix of the case are as follows:
One Annavi Kasilinga Nadar, who is the common vendor, had sold the suit properties to both the plaintiff and the defendant. The Sale Deed executed in favour of the plaintiff, dated 04.02.1987, is for a sum of Rs.14,700/-, wherein the land with right to draw water from the suit Well was given to the plaintiff and thereafter, the other part of the land owned by the said Annavi Kasilinga Nadar was sold to the defendant. Initially, legal notices were exchanged between the parties and the suit has has been filed and during the pendency of the suit before the Trial Court and the Lower Appellate Court, an interlocutory application was filed for appointment of Advocate Commissioner, by the plaintiff, to note down the physical features of the suit properties and the Advocate Commissioner in the presence of both the parties had inspected the suit properties and filed his reports, which were marked as Exs.C1 and C2 and thereafter, a defect in the survey number mentioned in the Sale Deed came to light and accordingly, the plaintiff filed necessary application before the Trial Court for amendment of the pleadings and after contest, the said interlocutory application was allowed. Not satisfied with the reports of the Advocate Commissioner, another interlocutory application was filed by the plaintiff, wherein the Advocate Commissioner was reissued with warrant to inspect the suit properties and to file a detailed report and the same was allowed and the second Advocate Commissioner's report and the sketch were also taken on file and both the parties had not filed any memo of objection and accordingly, before the Trial Court, they were marked as Exs.C1 to C4.
17. During the course of trial, the plaintiff let in evidence through her husband Thangavel as P.W.1 and marked Exs.A1 to A4 and on behalf of the defendant, Exs.B1 to B8 were marked and D.Ws.1 to 3 were examined, while D.W.2 is the common vendor to both the plaintiff and the defendant and Advocate Commissioner's reports and Sketch were marked as Exs.C1 to C4.
18. On consideration of both oral and documentary evidence, the Trial Court had found that there is a discrepancy in the survey number, though the boundaries are tallied. Mere oral evidence of D.W.2 is not sufficient to substantiate the plaintiff's case and the suit is bad for non-joinder of necessary parties and dismissed the suit.
19. On appeal, the learned Lower Appellate Judge, on re-appreciation of the evidence and taking into consideration the oral evidence of D.W.2, the common vendor, namely, Annavi Kasilinga Nadar along with Exs.C1 to C4, came to the conclusion that the plaintiff has proved her case and hence held that she is entitled to the relief of declaration to the title to the suit property and suit Well and also entitled for permanent injunction against the defendant.
20. During the pendency of the appeal before the Lower Appellate Court, the plaintiff filed I.A.No.232 of 1996 to receive additional evidence of land tax for the suit property and after contest, the interlocutory application was allowed and the additional evidence was received and they were marked as Exs.A5 to A6.
21. As stated supra, the Sale Deed, dated 04.02.1987, in favour of the plaintiff and the Sale Deed, dated 03.03.1987, in favour of the defendant, were executed by a common vendor D.W.2 Annavi Kasilinga Nadar, who is the predecessor-in-title of the properties in dispute. He was examined as D.W.2. In his evidence, he has deposed that:
?ehd; bghd;Drhkp ehlhUf;F 2tJ jgrpy; brhj;ij fpuak; bfhLj;Bjd;. thjpf;Fk; ehd; brhj;ijf; fpuak; bfhLj;Bjd;. ehd; gpujpthjpf;F fpuak; bfhLf;Fk;BghJ rh;Bt vz; jtWjyhf bfhLj;jpUe;jhh;. rPh;jpUj;j gj;jpuKk; Bghl;Lf;bfhLj;Bjd;.........thjpf;F fpuak; bfhLj;j gj;jpuj;jpy; rh;Bt vz; jtwhf cs;sJ. thjp Bfl;fhjjhy; rPh;jpUj;j gj;jpuk; Bghltpy;iy.?
22. The D.W.2, in his cross-examination, he has admitted that? ?gpuhJ 1tJ jgrpy; brhj;J vdf;F ghj;jpag;gl;oUe;J thjpf;F fpuak; bfhLj;Bjd;. rPh;jpUj;j gj;jpuk; Bfl;L thjp vdf;F mwptpg;g[ mDg;gpapUe;jhh;. mwptpg;g[ efy; th.j.rh.M4............thjpf;F 1tJ jgrpy; brhj;J ghj;jpag;gl;lJ. mjw;F thjp bgahpy; gl;lh khw;w vdf;F Ml;Brgidapy;iy. 1tJ jgrpy; thjpf;F fpuak; bfhLj;Jtpl;Bld;. 2tJ jgrpy; me;j rkak; vd; iftrk; nUe;jJ. 2tJ jgrpYf;F 1tJ jgrpy; tHpahf tha;f;fhy; ghj;jpak; nUg;gij thjpf;Fk;, gpujpthjpf;Fk; fpuak; bfhLj;j gj;jpuA;fspy; vGjpf; bfhLf;ftpy;iy.?
23. Thus, it could be seen that though there was a water channel in the land sold to the plaintiff, under Ex.A1, admittedly, that water channel was not sold to the defendant under Ex.B1. In the written statement filed by the defendant, there is no indication with regard to the claim of right over the water channel to irrigate his land. In other words, there is no pleading by the defendant to the above effect. The rectification deeds, Exs.B2, B4 and B6 are came into existence only after the suit, which is yet another factor that is to be borne in mind.
24. It is pertinent to mention that the plaintiff, in her plaint more particularly in Paragraph No.6 of the amended plaint, has specifically avered that the defendant has no right to irrigate his land by drawing water from the suit Well. This part of pleading was not denied by the defendant except the bald denial of all the allegations.
25. As extracted above, it is seen from the evidence of D.W.2 that in both the Sale Deeds executed by him in favour of the plaintiff and the defendant, a mistake was crept-in while mentioning the survey numbers. He has also admitted that the plaintiff has issued a legal notice for correction of the survey numbers in the said Sale Deed. However, he has not complied with the same nor gave any reply. Furthermore, in the cross-examination of D.W.2, it is elicited that he has not sold any right of drawing water or the water channel passing through the land of the plaintiff to the defendant' land assumes greater significance on the background of the case.
26. Pending trial, Advocate Commissioner was initially filed reports under Exs.C1 and C2 and the same Commission warrant was reissued to the same Advocate Commissioner and subsequently, he filed another set of sketch, plan and reports and all of them were marked as Exs.C1 to C4.
27. On a close perusal of Exs.C1 to C4, it is seen that the land belongs to the plaintiff and the land belongs to the defendant are clearly mentioned and the Well is mentioned as ?W? position and no water channel was in existence in the land of the plaintiff, but that of the defendant's land and after going through the evidence of D.W.2 and the admission made by the common vendor, in the cross-examination, coupled with the evidence of Exs.C1 to C4, the Lower Appellate Court has come to the correct conclusion that the suit Well lies within the four boundaries mentioned under Ex.A1, though there is a mistake in the survey number. So also the Lower Appellate Court has come to the conclusion that the lands of the defendant, which was purchased by him under Exs.B1 to B7 does not contain any water channel running from the suit A-Schedule, which is marked as ?W? in the Advocate Commissioner's reports.
28. On the above factual matrix, let us consider the dispute involved in the instant case.
29. The respondent / plaintiff has come forward with the specific case that she had purchased the suit property under Ex.A1. The appellant / defendant denied the identity of the property. To resolve the dispute, on behalf of the appellant / defendant, D.W.2, common vendor, was examined and his portion of evidence goes to show that a mistake was crept-in in the survey number relating to the suit Well and the respondent / plaintiff issued a legal notice for rectification, at the same time the appellant / defendant also sought for rectification of the Sale Deed executed in his favour. D.W.2 had chosen to execute Rectification Deed in favour of the appellant / defendant in respect of the Sale Deed executed in his favour. In other words, Exs.B2, B4, B6 and B8 are Rectification Deeds for Exs.B1, B3, B5 and B7 Sale Deeds respectively. It remains to be stated that the suit was filed on 17.02.1988 and all the Rectification Deeds, as referred above, are all dated, 06.02.1992, 06.02.1992, 07.02.1992 and 07.02.1992 respectively. Admittedly, the fact that all these documents came into existence only after institution of the suit assumes greater significance on the factual matrix of the case.
30. As stated supra, the Advocate Commissioner's Report marked as Exs.C1 and C2 categorically identifies the suit Well totally surrounded by the land belongs to the respondent / plaintiff. In Ex.C1, it is stated that fpzw;wpy; nUe;J nuz;L tha;f;fhy; ?I? Bky;g[wkhf bry;fpwJ. tha;f;fhiy mLj;J ghij fhzg;gLfpwJ. i& ghijia mLj;J thjp g{kp fhzg;gLfpwJ and the same could be visualized in Ex.C4. But, it does not lead to the appellant / defendant's land at any point of directions. Furthermore, D.W.2, common vendor, has categorically deposed that he has not alienated any water channel from the suit Well to the appellant / defendant's land and the same duly stands corroborated by the documentary evidence of the Advocate Commissioner's Report, Sketch and Plan marked as Exs.C1 to C4. Thus, on a combined reading of the admission in the cross-examination of D.W.2 with that of Exs.C1 to C4, this Court comes to the conclusion that there is no water channel from the suit Well and as such the suit property can be identified with the aid and assistance of the documentary evidence of Exs.C1 to C4 and oral evidence of D.W.2.
31. The learned counsel appearing for the appellant / defendant would contend that with regard to the identity of the suit Well is concerned, there is a discrepancy in the survey number.
32. At this juncture, it would be more beneficial to refer the legal maxim ?falsa demonstratio non nocet?, which means that erroneous description does not vitiate a deed and a false description does not render a deed or other writing inoperative. In other words, if there be a sufficient and adequate description to create a certainty of what was meant, subsequent erroneous additions will not vitiate a description otherwise accurate. The said legal maxim has been invoked and applied in the decision in Seela Bodi Naicker v. Kama Raja Pandiya Naicker, reported in (1943) 2 MLJ 622.
33. In Roohnisha Beevi and 15 others v. A.M.M.Mahudu Mohamed and 29 others, reported in 1998-1-L.W.244, it is held that the evidence supplied by boundaries, extent survey numbers and lakhoms (paimash numbers) forms the determining factors when the identity of the property is put in issue. In case of conflict, usually boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. Erroneous statement of survey number or omission to state should be rejected as falsa demonstratio. Where on a construction of a document transferring title to hold a property, it is clear that the intention of the parties was to transfer a parcel of land within well defined boundaries, any erroneous statement of survey number or omission to state it should be rejected as falsa demonstratio.
34. Applying the above principle and the legal maxim, in the instant case, the suit Well is well within the boundary of the plaint Schedule and it is easily identifiable with the aid of the Advocate Commissioner's report and hence, the findings arrived by the Lower Appellate Court are well founded and well considered one and it do not warrant any interference by this Court and in view of the same, the substantial question of law No.1 is held against the appellant / defendant and it is answered in favour of the respondent / plaintiff.
35. In sofar as the substantial question of law No.2 is concerned, the respondent / plaintiff sought for relief of injunction against the appellant / defendant from drawing water from the suit Well, when the respective Sale Deeds viz., Exs.A1 and B1 convey right to draw water.
36. In the foregoing paragraphs, it has been observed that the common vendor D.W.2 has specifically deposed that he has not alienated or sold the water channel from the suit Well to that of the appellant / defendant's land. Admittedly, at the time of selling the land in favour of the respondent / plaintiff, he has not sold any land to the appellant / defendant and only on 03.03.1987, he has sold the land to the appellant / defendant. With regard to the Advocate Commissioner's Reports viz., Exs.C1 to C4 are concerned, neither of the parties have filed any objection to the physical features of the suit property noted down therein. On a close perusal and scanning of Exs.C1 to C4, it is very clear that there is no water course or water channel from the suit Well to the land belongs to the appellant / defendant.
37. The legal position regarding use of common well has been summarized in Kasi Naidu v. Govindarajan, reported in 1999 MLJ 746, wherein it is held as under:
?One of the co-owner held cannot take water from common well to irrigate other lands not intended to be irrigated from it.?
It is further held that:
?(1) no damage need be proved by any infraction of the joint right of ownership, as the joint ownership of the well in an incident to the joint ownership of lands to irrigate which the said well was to be used; (2) it is not open to one of the owners to take water irrigating other lands and contend that he has not exceeded his share of the right to take water from the well and, that (3) the ownership of water in the well is independent to the ownership of land and hence the use of water for lands other than that for which the well is intended is not permissible.?
38. The appellant / defendant, in order to substantiate his defence, has examined D.W.2, common vendor, who had spoken about the execution of Exs.B1 to B8 and in his cross-examination, it is elicited that he has not sold any water course or water channel leading from the suit Well to the land belongs to the appellant / defendant. Furthermore, as observed earlier, Exs.B2, B4, B6 and B8 are Rectification Deeds executed in favour of the appellant / defendant by D.W.2 after institution of the suit. On applying the principle of collecting grains out of chef from the evidence of D.W.2, common vendor, this Court comes to the conclusion that the appellant / defendant cannot draw water from the suit Well for the lands not covered under the irrigationable area of the suit Well. Furthermore, applying the decision of Kasi Naidu (cited supra), this Court is of the view that the respondent / plaintiff is entitled to the relief of injunction restraining the appellant / defendant from drawing water from the suit Well to his land without any right. Therefore, the findings of the Lower Appellate Court are well considered and well founded and the same do not suffer from any infirmity or illegality and the same are sustainable in law. Accordingly, the substantial question of law No.2 is held against the appellant / defendant and answered in favour of the respondent / plaintiff.
39. In the result, the second appeal is dismissed and the Judgment and Decree, dated 19.09.1996, made in A.S.No.14 of 1995, on the file of the Subordinate Court, Tenkasi, setting aside the Judgment and Decree, dated 24.01.1995, made in O.S.No.133 of 1988, on the file of the District Munsif Court, Tenkasi, are confirmed. No costs.
To:
1.The Subordinate Judge, Tenkasi.
2.The District Munsif, Tenkasi..